State v. Peek , 89 N.C. App. 123 ( 1988 )

365 S.E.2d 320 (1988)

STATE of North Carolina
v.
Linda Sue PEEK.

No. 8726SC637.

Court of Appeals of North Carolina.

March 1, 1988.

Atty. Gen. Thornburg by Asst. Atty. Gen. Douglas A. Johnston, Raleigh, for the State.

James H. Carson, Jr., Charlotte, for defendant-appellant.

EAGLES, Judge.

Defendant argues that the trial court erred in allowing into evidence copies of several pieces of mail addressed to her at 826 Squirrel Hill Road. Because they were offered to prove that she lived at that address, defendant contends the mail is inadmissible hearsay. We disagree.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. Livermon v. Bridgett, 77 N.C.App. 533, 335 S.E.2d 753 (1985), disc. rev. denied, 315 N.C. 391, 338 S.E.2d 880 (1986); G.S. 8C-1, Rule 801(c). A "statement" is either (1) an oral or written assertion, or (2) non-verbal conduct which is intended as an assertion. G.S. 8C-1, Rule 801(a). Defendant's name and address, written or printed on an envelope or its contents, is neither a written assertion nor conduct which is intended as an assertion and, therefore, is not hearsay evidence.

On its face, a written or printed name and address on an envelope asserts nothing. From the sender's conduct in writing or affixing the name and address and mailing the material so addressed, however, it may be inferred that the sender believes the person named lives at that address. As the Commentary to Rule 801 makes clear, conduct "offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved" is not a statement. Although evidence of the sender's conduct remains untested as to perception, memory, and narration, those "dangers are minimal in the absence of an intent to assert, and do not justify the loss of the evidence on hearsay grounds." G.S. 8C-1, Rule 801, Commentary. See also McCormick on Evidence, section 250 (3 ed. 1984). The sender's conduct in addressing and mailing the envelope undoubtedly implies that the sender believes the addressee lives at that address. Nevertheless, because no assertion is intended, the evidence is not hearsay and is admissible. See United States v. Singer, 687 F.2d 1135 (8th Cir.1982).

Defendant next argues that the trial court erred in failing to grant her motion to dismiss at the close of the evidence. She contends that the evidence was insufficient to show she had constructive possession of the contraband. We find no error.

When determining whether the evidence is sufficient to go to the jury on the question of defendant's guilt, the trial court must view the evidence in the light most favorable to the State, giving it the benefit of all reasonable inferences which may be drawn therefrom. State v. Rasor, 319 N.C. 577, 356 S.E.2d 328 (1987). Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband. State v. Beaver, 317 N.C. 643, 346 S.E.2d 476 (1986). Where contraband is found on premises under the control of the defendant, that in itself is sufficient to go to the jury on the question of constructive possession. State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976). In proving that the defendant had control of the premises, it is not necessary to show that defendant was present when the contraband was found. See State v. Cockman, 20 N.C.App. 409, 201 S.E.2d 740, cert. denied, 285 N.C. 87, 203 S.E.2d 61 (1974).

The evidence showed that a telephone bill and other pieces of mail, addressed to defendant at 826 Squirrel Hill Road, were found in the bedroom; that defendant's minor son appeared at the house during the course of the search; that an acquaintance of defendant, who did not live at the house, was present in the living room when the officers arrived; that defendant was arrested inside the house ten days later; and that contraband was found in four different rooms, some of it in plain view and some of it hidden. This is sufficient, taken in the light most favorable to the State, to show that defendant had the intent and power to control the contraband. See State v. Edwards, 85 N.C. App. 145, 354 S.E.2d 344, cert. denied, 320 N.C. 172, 358 S.E.2d 58 (1987); State v. Cockman, supra. The trial court did not err in denying defendant's motion to dismiss.

Finally, defendant argues here that the trial court erred in instructing the jury that they could infer that she had constructive possession of the contraband if they found, beyond a reasonable doubt, that she had control of the premises. Defendant, however, did not object to the trial court's instructions on those grounds and, therefore, is barred from assigning it as error. R.App. 10(b)(2); Martin v. Hare, 78 N.C.App. 358, 337 S.E.2d 632 (1985). Moreover, the trial court's instruction was not erroneous. The trial court may properly instruct the jury that it may infer a defendant's constructive possession of contraband from his control of the premises if the instruction clearly leaves it to the jury to decide whether to make the inference. See State v. Hamlet, 15 N.C.App. 272, 189 S.E 2d 811 (1972). Here, the trial court properly instructed the jury on the inference. Defendant's assignment of error is without merit.

No error.

HEDRICK, C.J., and GREENE, J., concur.